Can a Pardon Make you Eligible to Seal or Expunge Your Record?

In order to seal or expunge a criminal record in Florida the law requires that the Petitioner obtain a certificate of eligibility from the Florida Department of Law Enforcement. To qualify for a Certificate of Eligibility the applicant cannot have been convicted of any prior offense. Under Florida law a conviction, for purposes of sealing or expunging a criminal record, means that the petitioner was either adjudicated guilty as an adult or adjudicated delinquent as a juvenile for a criminal offense. The question that often comes up is whether a pardon will alleviate the conviction impediment.

The first instance I have found where the pardon powers of the executive collided with the legislative powers to write laws is in the case of Doe v. State, 595 So.2d 212 (Fla. 5th DCA 1992). Mr. Doe had asked and received a record sealing/expungement (at the time both sealing and expunging criminal records fell under a single statute s. 943.058, Fla. Stat.) after having been convicted of accessory to robbery in 1976. He completed a term of 10 years probation and in 1986 Mr. Doe was given a full and unconditional pardon. Thereafter, in 1990, he sought and received the granting of a sealing/expungement petition. Soon afterwards the state asked the court to reconsider the granting of the relief and the court reversed itself stating that the petitioner, Mr. Doe, did not qualify for the relief because he had been convicted of the underlying offense, the pardon notwithstanding.

The Fifth District Court of Appeal reversed the lower court’s decision. It pointed out that “[w]hen the pardon is full, it remits the punishment and blots out of existence the guilt, so that in the eyes of the law the offender is as innocent as if he never committed the offense.” It cited several cases from the 1800s and a few from the 1950s in support of its position. The Court went on and found that the lower court failed to have the state meet the burden necessary to unseal the court’s file after it had been sealed. The decision was reversed and all seemed well that a full and unconditional pardon could eliminate the conviction barrier for sealing or expunging a criminal record.

Then in 2001 the First District Court of Appeal decided Randall v. Florida Department of Law Enforcement, 791 So.2d 1238 (Fla. 1st DCA 2001). Mr. Randall was convicted of fraudulently making a certificate as a notary public in 1985. He received a full pardon from the governor in 1998. In 1999, Mr. Randall applied for a certificate of eligibility from the Florida Department of Law Enforcement [FDLE] and was denied. The FDLE stated that the reason for denial was because he had been adjudicated guilty of the offense he sought to expunge. Mr. Randall filed a writ of mandamus asking the circuit court to order FDLE to issue the certificate of eligibility.

The court issued a rule to show cause order and the FDLE responded stating that because of substantive changes to the statutes it was not authorized to issue a certificate of eligibility to Mr. Randall. Mr. Randall argued that his full pardon made him eligible and he cited the Doe case. The FDLE pointed out that Doe was decided under the previous statute. The current statute instituted the use of the certificate of eligibility and precluded issuance if the applicant had been convicted of a criminal offense. The Court concluded that it would have to decide the effect of a full pardon on an applicant’s ability to qualify for a certificate of eligibility under the new statute.

The Court decided that Mr. Randall was not eligible for a certificate of eligibility despite having received a full pardon from the governor. It pointed out that recent case law stood for the proposition that “while a full pardon restores one’s civil rights . . . it does not obliterate the fact of the commission of the crime and the conviction thereof[.]” In more simple language a pardon “involves forgiveness and not forgetfulness.”

The conflict presented between the Doe case and the Randall case did not go unnoticed by the Florida Supreme Court. Unfortunately, Mr. Randall was killed in a car accident before the conflict could be heard and his case was dismissed as moot. Luckily, another case was stayed pending the decision in the Randall case and, when Randall was dismissed, the Court accepted jurisdiction to resolve the conflict. The case was R.J.L. v. State, 887 So.2d 1268 (Fla. 2004).

The facts of R.J.L. are similar to the facts in Randall. R.J.L. requested a certificate of eligibility from FDLE after having been convicted of a criminal offense for which he received a pardon. FDLE refused and R.J.L. filed a writ of mandamus. Finding conflict with the Doe case the Florida Supreme Court accepted jurisdiction.

Reviewing not only the cases cited in Doe and Randall but also looking at Federal cases and other state cases the Supreme Court agreed with the Randall court. A pardon forgives the offense but does not create a legal fiction that the crime never occurred. It then stressed that to be eligible for a certificate of eligibility from the FDLE one could not have been convicted for the criminal record sought to be sealed or expunged.

In conclusion, the bottom line is that a full pardon will not undo the conviction for purposes of obtaining a certificate of eligibility. Since the certificate of eligibility is a condition precedent to having a petition to seal or expunge heard, a person convicted of a crime is not eligible to have his record sealed or expunged regardless of whether he was granted a pardon.